Opinion 20-193

December 10, 2020

Digest:              (1) A town justice may not speak at a town board meeting concerning a proposed town resolution opposing extension of the big game hunting season.

                        (2) The judge may share a copy of the proposed resolution with others if it is a public record or if the town board has otherwise made it available to the public.

Rules:               22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(11); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 19-137; 14-71; 13-189/14-02; 13-178; 10-156; 10-130; 07-150/07-151; 05-08; 98-125.

Opinion:

         The inquiring town justice, a member of a muzzleloaders association,¹ is aware of a draft state regulation which would extend the big game hunting season beyond its usual end date, thus delaying the opening of snowmobile trails. The town board proposes to issue a resolution opposing this regulation based on the expected economic impact on “many small businesses” in the town that are “supported and dependent on the snowmobile trails that pass by their establishments.” The judge opposes the resolution and believes its factual premise is inaccurate because there are neither snowmobile trails nor hunting land in the town. The judge asks if it is ethically permissible to speak at a town board meeting regarding the proposed town board resolution and to share the proposed resolution with other members of the muzzleloaders association.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) and must not “disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity” (22 NYCRR 100.3[B][11]). Because a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a judge’s extrajudicial activities must not cast reasonable doubt on their capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]), detract from the dignity of judicial office (see 22 NYCRR 100.4[A][2]), or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][3]). In addition, a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]).

1. Publicly Opposing the Proposed Resolution

         We have said that a judge may not meet with legislators concerning a legislative agenda with regard to “safety standards and administrative reform in the sport of boxing” (Opinion 10-130). We explained that the “issues generated by such legislation may well be controversial, and such proposals will not concern the improvement of the law, the legal system or the administration of justice” (id. [citations and internal quotation marks omitted]). Here, too, the proposed resolution involves sporting activities and their local economic impact, rather than “measures to improve the law, the legal system, or the administration of justice” (id.; 22 NYCRR 100.5 [A][1][iii]). As in Opinion 10-130, there are sharply divergent views about the proposed state regulation and the town’s proposed resolution; indeed, it could potentially be seen as pitting the interests of snowmobile enthusiasts against those of big game hunters.

         That the judge would be speaking as a private citizen does not change the result, since the judge does not identify any cognizable personal interest that would be affected by the resolution (see Opinion 19-137; cf. Opinion 13-189/14-02 [discussing prior opinions]). The common thread in prior opinions is a personal property interest that could be adversely affected (see e.g. Opinions 10-156; 13-178; 14-71), and we can discern no such interest here. To the contrary, the judge’s interest here appears to be mere disagreement on the resolution’s wisdom. The judge’s apparent desire, whether as a member of the muzzleloaders association or otherwise, to extend the big game hunting season, does not rise to the level of a cognizable personal interest which will be directly affected by the resolution (see Opinions 19-137; 05-08 [prohibiting a judge, a board member of a hospital, from appearing before a town board regarding that hospital’s expansion plans; the hospital’s interests were potentially affected, not the judge’s]).

         Accordingly, we conclude the judge may not speak at a town board meeting concerning a proposed resolution opposing extension of the big game hunting season.

2. Sharing the Proposed Resolution with Others

         The judge also asks if they may share the proposed resolution with other members of the muzzleloaders association. This can be done only if it is a public record or the town board has otherwise made it available to the public (see Opinions 98-125; 07-150/07-151). Otherwise, it could create an appearance that the justice used the prestige of the office to secure a non-public document to advance the interests of the association (see 22 NYCRR 100.2[C]; 100.3[B][11]).

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¹ For purposes of this opinion, we assume the association is a non-political, not-for-profit civic or fraternal organization that promotes sports involving the use of muzzle-loading firearms.